2. DEATH PENALTY AND THE UPR
2.1 Death Penalty in International Law
The death penalty is an issue that spans across a number of broader human rights issues. Furthermore, these human rights principles are interwoven. A critical example can be found in the imposition of mandatory death sentences, which can run afoul of the prohibition against cruel and unusual
punishment,17 as well as the protection against arbitrary deprivation of the right to life.18 Furthermore, while the principles themselves are interwoven, there are a number of human rights instruments which overlap. For example, the right to life is codified in a number of different treaties,19 all of which are similar, but far from identical. Due to the labyrinthine structure of human rights, it is necessary to clearly establish the key principles that relate to the death penalty. Furthermore, there are a number of international legal realities that contribute to the intersection of international law and the death penalty, particularly through State cooperation.
A number of instruments relate to the restriction of the death penalty, including multilateral treaties such as the International Covenant on Civil and Political Rights (“ICCPR”) and its Second Optional Protocol. The Economic and Social Council (“ECOSOC”) declared a resolution on Safeguards Guaranteeing Protection of Those Facing the Death Penalty (“Safeguards”) which set out clear guidelines relating to application of the death penalty, and are internationally recognised minimum standards.20 The European Convention on the Protection of Human Rights and Fundamental
Freedoms has two protocols which deal with the total abolition of the death penalty.21 The Protocol to
16 Schabas (2002), pp.443-445.
17 Schabas (2002), p.324.
18 E/2015/49, para.64.
19 Schabas (2002), pp.6-7.
20 E/2015/49, para.61.
21 Council of Europe, Protocol 6 to the European Convention for the Protection of Human Rights and
Fundamental Freedoms concerning the Abolition of Death Penalty, 28 April 1983, ETS 114; Council of Europe, Protocol 13 to the European Convention on Human Rights and Fundamental Freedoms on the Abolition of the Death Penalty in All Circumstances, 3 May 2002, ETS 187.
- 12 -
the American Convention on Human Rights to Abolish the Death Penalty is also a significant abolitionist instrument.22
2.1.1 Right to life
First and foremost is the right to life, which is the most prominent right restricting the use of the death penalty. A number of instruments and treaties provide for the right to life, including the Universal Declaration of Human Rights (“UDHR”),23 and ICCPR.24 It also forms part of regional multi-lateral human rights treaties.25 While no reference to the death penalty forms part of the UDHR, it is
explicitly provided for in a number of other instruments. The consequences of a right to life in relation to the death penalty have been subject to lengthy debate. Article 6 of the ICCPR was negotiated for 11 years before any agreement was reached.26 As such, it deals in great detail with the issue of the death penalty and now enjoys practically universal acceptance.27
The right to life contained in Article 6 of the ICCPR has been described as both permissive and restrictive.28 The permissive perspective argues that the death penalty is provided as an exception to the right to life and therefore recognition that it is accepted practice. The counter argument describes these exceptions as a “regrettable and temporary compromise”.29 Indeed, one need only look at paragraph 6 of the Article to find the intentions of the drafters clearly expressed. Article 6 is not intended to promote or support the existence of the death penalty, and as such it states that “[n]othing in this article shall be invoked to delay or to prevent the abolition of capital punishment”.
Four of the six paragraphs of Article 6 refer explicitly to the issue of the death penalty.30 Article 6(2) restricts the death penalty to the “most serious crimes”. No consistent definition has arisen regarding this provision. The Human Rights Committee states in General Comment 6(16) that the provision must be read restrictively.31 The ECOSOC Safeguards expand on this threshold. It states the most
22 Organization of American States (OAS), Protocol to the American Convention on Human Rights to Abolish the Death Penalty ("Pact of San Jose"), 8 June 1990, OAS Treaty Series, N°.73.
23 General Assembly Resolution 217A (III), Universal Declaration of Human Rights, U.N. Doc A/810 at 71, 10 December 1948, Art. 3.
24 ICCPR, UNGA Res. 2200A. International Covenant on Civil and Political Rights. 16 December 1966, Art. 6.
25 ECHR, Art. 2(1); ACHR, Art. 4.
26 Schabas (2002), p.77.
27 Schabas, (2004), p.423.
28 Schabas (2002), p.95.
29 Schabas (2002), p.95.
30 ICCPR, Arts. 6(2), (4), (5), & (6).
31 CCPR General Comment No. 6: Article 6 (Right to Life), UN Human Rights Committee (HRC), 30 April 1982, para.7.
- 13 -
serious crimes should be intentional, and that carry “lethal or other extremely grave consequences”.32 This approach was subsequently adopted by the General Assembly (“UNGA”).33 Furthermore, this restriction is understood to prohibit the death penalty applying to political crimes,34 drug offences,35 and crimes not resulting in death.36
Article 6(5) also clearly prohibits the death penalty being applied to minors and pregnant women.
Paragraph 5 refers to persons under the age of 18 at the time of offending. This provision is clear, and is almost universally applied since the U.S., one of the few recalcitrant States, abolished the death penalty for minors in 2005.37 However, in relation to pregnant women, it is unclear whether such a sentence can be carried out subsequent to the mother giving birth.38 Article 6(4) also requires that clemency is available. Finally, Article 6 sets a number of conditions that are to be applied to the death penalty. For example, that it not be arbitrarily imposed,39 that it must be subject to rigorous checks and balances, including appellate procedures,40 and that it not be reintroduced following abolition.41
2.1.2 Cruel and unusual punishment
The focus of human rights and the death penalty is often centered on the right to life, however issues of implementation and methods are also relevant.42 The prohibition against cruel and unusual
punishment appears in a number of human rights instruments43 and has been used as an indirect means
32 Economic and Social Council, Safeguards guaranteeing protection of the rights of those facing the death penalty, Resolution 1984/50, 25 May 1984.
33 UN General Assembly (14 December 1984) Human rights in the administration of justice, Resolution A/RES/39/118.
34 The death penalty in relation to political crimes is expressly prohibited in the ACHR, Art. 4(4)
35 Human Rights Committee, 'Concluding Observations, Sri Lanka', para. 14; HRC (8 July 2005) Concluding observations: Thailand, CCPR/CO/84/THA, para. 14; HRC (29 August 2007) Concluding observations: Sudan, CCPR/C/SDN/CO/3, para. 19; HRC (18 June 2010) Report of the Special Rapporteur on extrajudicial, summary or arbitrary executions, Addendum: Communications to and from governments, A/HRC/14/24/Add.1, pp.
45–46.
36 Chisanga v. Zambia, Communication No. 1132/2002, para. 5.4.
37 Roper v Simmons, SCOTUS.
38 Schabas (2002), p.135.
39 Eg. Mandatory death sentences, See, Thompson v. St. Vincent and the Grenadines (No. 806/1998), UN Doc.
CCPR/C/70/D/806/1998, para. 8.2.
40 “the procedural guarantees therein prescribed must be observed, including the right to a fair hearing by an independent tribunal, the presumption of innocence, the minimum guarantees for the defence, and the right to review by a higher tribunal”, General Comment 6, para.7.
41 In support of this conclusion, see ACHR, Art. 4(3); UN Human Rights Committee: Concluding Observations, Lebanon, UN Doc. CCPR/C/79/Add.78, para.20; Whether or not article 6 prohibits reintroduction of the death penalty is not conclusive, see Schabas (2002), pp.102-104.
42 E/2015/49, para.110.
43 ICCPR, Art. 7; CAT, UN General Assembly, Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 10 December 1984, United Nations.
- 14 -
of attacking the use of the death penalty.44 The Human Rights Committee note in General Comment 20 that the death penalty “must be carried out in such a way as to cause the least possible physical and mental suffering”.45 This has been applied in cases relating to the methods of execution,46 and the psychological harm arising from such a sentence.47
The Convention on the Rights of the Child expressly prohibits the imposition of the death penalty for crimes committed by a person under the age of 18.48 This is provided for under the auspices of a provision prohibiting cruel and unusual punishment. In a similar vein, a finding was made by the U.S.
Supreme Court prohibiting the execution of children on the basis that it would amount to cruel and unusual punishment.49 Most recently the U.S. Supreme Court held, in a deeply divided judgement, that lethal injection does not amount to cruel and unusual punishment.50
2.1.3 Right to consular assistance
A number of cases regarding the death penalty have involved elements of international law when dealing with the right to consular assistance.51 Such cases have involved disputes between States relating to the Vienna Convention on Consular Relations, in particular the right to consular assistance.52 The LaGrand case before the International Court of Justice (“ICJ”) involved the
execution of two German nationals, who were executed without receiving the consular assistance that is required under the Vienna Convention. The result was the U.S. being found in breach of
international law.53 This resulted in an uproar of protest in the Europe, with the German Justice Minister describing it as “barbaric and unworthy of a state based on the rule of law.”54 Such cases are not uncommon,55 and have resulted in bitter legal disputes between States. While the issues is not
44 Schabas (2002), pp.18-19.
45 CCPR General Comment No. 20: Article 7 (Prohibition of Torture, or Other Cruel, Inhuman or Degrading Treatment or Punishment), UN Human Rights Committee (HRC), 10 March 1992, para.6.
46 UNHRC, Chitat Ng v. Canada, Communication No. 469/1991, U.N. Doc. CCPR/C/49/D/469/1991 (1994), paras. 16.3–16.5.
47 Schabas, W. (1996). The Death Penalty as Cruel Treatment and Torture, Boston: Northeastern University Press, pp.96-97; ECHR, Soering v. The United Kingdom, Application No. 14038/88, 7 July 1989, para.111.
48 CRC, UN General Assembly, Convention on the Rights of the Child, 20 November 1989, United Nations, Art 37(1).
49 Supreme Court of the U.S., Roper v Simmons, 543 U.S. 551 (2005) 112 S. W. 3d 397.
50 Supreme Court of the U.S., Glossip v. Gross 576 U.S. (2015) 776 F. 3d 721
51 Schabas (2002), fn.96.
52 United Nations, Vienna Convention on Consular Relations, (1963) 596 UNTS 261, Art 36(1)(b).
53 LaGrand Case (Germany v. United States of America), International Court of Justice (ICJ), 27 June 2001.
54 Warren, M. (2004). Death, Dissent, and Diplomacy: The U.S. Death Penalty as an Obstacle to Foreign Relations, 13 Wm. & Mary Bill Rts. J. 309, p.1.
55 Supreme Court of the U.S., Breard v. Gilmore, 523 U.S. 371 (1998); Avena and Other Mexican Nationals (Mexico v. United States of America), International Court of Justice (ICJ), 31 March 2004.
- 15 -
strictly related to the validity of the death penalty, it is certainly linked to issues of due process, and the necessity for any death penalty regime to adhere to legal standards. Furthermore, it is
demonstrative of the critical role that State interaction can play in raising death penalty issues.
2.1.4 State cooperation
The imposition of the death penalty has resulted in a number of disputes between States, causing a disruption in cooperation. The most significant impact on State interactions has been in the area of extradition. The European Court of Human Rights has adopted a number of decisions prohibiting the extradition of persons who face a real risk of being subjected to death penalty.56 Similar issues have been raised in the cases relating to extraordinary rendition, whereby the applicants alleged that they were at risk of being subjected to the death penalty, but were transferred regardless.57 For this reason, many States refuse to extradite to the U.S.58
Not only can the death penalty directly impact on the ability for cooperation between States to be achieved, but it can also severely harm relationships. The death penalty has been described as the Achilles’ heel of the U.S. in relation to its foreign policy on human rights issues.59 A number of U.S.
retired diplomats stated that the practice of executing juveniles would create “diplomatic isolation”.60 Furthermore, the death penalty is also capable of stalling bilateral agreements, as demonstrated in the dispute between the U.S. and Australia over an agreement that would restrict the applicability of the death penalty to arrested persons.61 More recently, Indonesia bore the brunt of withering diplomatic criticism after carrying out executions on Brazilian, Dutch and Australian citizens, with all three countries withdrawing their Ambassadors.62 The death penalty is no longer an internal measure of criminal justice, but one that has far reaching diplomatic consequences.
56 ECHR, Kaboulov v. Ukraine, Application No. 41015/04, Judgement of 19 November 2009; ECHR, Al Nashiri v.
Poland, Application No. 28761/11, Judgement of 24 July 2014.
57 ECHR, Husayn (Abu Zubaydah) v. Poland, Application No. 7511/13), Judgment of 24 July 2014.
58 Schabas (2004), p.422.
59 Douglas, D. (2004). Introduction: Death Penalty and International Law, 13 Wm. & Mary Bill Rts. J. 305, p.306.
60 Warren (2004), p.323.
61 Warren (2004), p.326.
62 The Guardian, ‘Brazil and Netherlands recall Indonesia ambassadors over drug executions’, 18 January 2015;
BBC News, ‘Indonesia executions: Australia recalls ambassador’, 29 April 2015.
- 16 - 2.1.5 International criminal law
Despite a history of international criminal law adopting the use of the death penalty, recent examples demonstrate otherwise.63 The practice of international criminal law has resulted in a restriction of the death penalty. The most direct impact arises from the creation of tribunals such as the International Criminal Tribunal for Rwanda, which had a direct impact on abolition in the country.64 Furthermore, a powerful statement was made by the Security Council in excluding capital punishment from the statute of the International Criminal Tribunal for the Former Yugoslavia, despite the seriousness of the crimes open to the court.65 The drafting of the Rome Statute for the International Criminal Court involved discussions of the application of the death penalty, with a conclusion that such a penalty should not be applied.66 While this could be touted as a great victory for abolition in international law, Article 80 was included to appease retentionist States, which provided that “[n]othing in this Part affects the application by States of penalties prescribed by their national law, nor the law of States which do not provide for penalties prescribed in this Part.” The inclusion of Article 80 suggests that the Rome Statute is neutral in relation to the death penalty, and this has been relied upon by
retentionist States as evidence that no prohibition of the death penalty exists under international law.67 Despite this, both the Secretary General and European Union have cited the ICC’s rejection of the death penalty as a “significant international development”.68